The European Court of Human Rights (ECHR) has ruled that the convictions of Fredrik NEIJ and Peter SUNDE KOLMISOPPI, operators of The Pirate Bay bittorrent site did not violate Article 10 of the European Convention on Human Rights. The Court found that the convictions of the defendants for criminal copyright infringement did not violate their rights to freedom of expression as the convictions and jail sentences imposed by Sweden’s Court of Appeal was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. The application to set aside the convictions was rejected “as manifestly ill-founded”.

Article 10 the Convention provides the following fundamental right:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The Court, in considering both interests, rejected the application explaining why the convictions and jail terms were necessary in a democratic society saying the following:

The Court reiterates that the test of “necessity in a democratic society” requires it to determine whether the interference complained of corresponded to a “pressing social need” (Observer and Guardian, cited above, § 59).

The test of whether an interference was necessary in a democratic society cannot be applied in absolute terms. On the contrary, the Court must take into account various factors, such as the nature of the competing interests involved and the degree to which those interests require protection in the circumstances of the case. In the present case, the Court is called upon to weigh, on the one hand, the interest of the applicants to facilitate the sharing of the information in question and, on the other, the interest in protecting the rights of the copyright-holders.

As to the weight afforded to the interest of protecting the copyright‑holders, the Court would stress that intellectual property benefits from the protection afforded by Article 1 of Protocol No. 1 to the Convention (see, for example, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 72, ECHR 2007‑I). Moreover, it reiterates the principle that genuine, effective exercise of the rights protected by that provision does not depend merely on the State’s duty not to interfere, but may require positive measures of protection (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004‑XII). Thus, the respondent State had to balance two competing interests which were both protected by the Convention. In such a case, the State benefits from a wide margin of appreciation (Ashby Donald and Others, cited above, § 40; compare also to the Committee of Minister’s recommendation, referred to above).

In this connection, the Court would also underline that the width of the margin of appreciation afforded to States varies depending on a number of factors, among which the type of information at issue is of particular importance. In the present case, although protected by Article 10, the safeguards afforded to the distributed material in respect of which the applicants were convicted cannot reach the same level as that afforded to political expression and debate. It follows that the nature of the information at hand, and the balancing interest mentioned above, both are such as to afford the State a wide margin of appreciation which, when accumulated as in the present case, makes the margin of appreciation particularly wide (Ashby Donald and Others, cited above, § 41).

Since the Swedish authorities were under an obligation to protect the plaintiffs’ property rights in accordance with the Copyright Act and the Convention, the Court finds that there were weighty reasons for the restriction of the applicants’ freedom of expression. Moreover, the Swedish courts advanced relevant and sufficient reasons to consider that the applicants’ activities within the commercially run TPB amounted to criminal conduct requiring appropriate punishment. In this respect, the Court reiterates that the applicants were only convicted for materials which were copyright-protected.

Finally, the Court reiterates that the nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of interference with the freedom of expression guaranteed by Article 10 (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004-XI, and Skałka v. Poland, no. 43425/98, § 41, 27 May 2003). In the present case, the Court considers that the prison sentence and award of damages cannot be regarded as disproportionate. In reaching this conclusion, the Court has regard to the fact that the domestic courts found that the applicants had not taken any action to remove the torrent files in question, despite having been urged to do so. Instead they had been indifferent to the fact that copyright-protected works had been the subject of file-sharing activities via TPB.

In conclusion, having regard to all the circumstances of the present case, in particular the nature of the information contained in the shared material and the weighty reasons for the interference with the applicants’ freedom of expression, the Court finds that the interference was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.

It follows that the application must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.